WHAT TO KEEP AN EYE OUT FOR…

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Travelling To Work 'Is Work', European Court Of Justice RulesThe European Court of Justice on the Working Time Directive, has ruled that the time spent travelling to and from first and last appointments, by workers without a fixed office should be regarded as working time. Currently workers without fixed offices are not typically paid for the time they spend travelling to the first job of the day and from the last job of the day.

The ruling was made following a Spanish case involving security companies Tyco Integrated Security, Tyco Fire and Security Corporation Servicios. The companies in question, closed all of their regional offices in 2011 and had assigned all Employees to a Madrid based office. Technicians working in regional areas for the Company were given the use of company cars to travel to and from the various sites where they were required to carry out their work. The distances required to travel varied greatly, with workers often travelling up to 100 kilometres for the first job of the day, which could take up to three hours. Employees’ days had been considered to begin when they reached the premises of their first customer and to end after leaving the premises of the last customer.

The judgement, in conclusion stated: “During the necessary travelling time – which generally cannot be shortened – the workers are therefore not able to use their time freely and pursue their own interests. The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves. ”Making staff “bear the burden of their employer’s choice” could be contrary to the EU’s working time directive, which lays down rules on rest periods and maximum working hours, the court said.

Workers can now accrue Annual Leave while on Long-Term Sick Leave Ged Nash, Minister for Business and Employment, has announced workers are now entitled to accrue annual leave when they are on long term sick leave. Employees will be able to carryover accrued leave for a period of 15 months. Minister Nash secured agreement in Cabinet to change the Organisation of Working Time Act 1997 in order to make these legislative changes.

He stated, “The change to the legislation will bring clarity in Irish law as to how annual leave can be accrued and carried over when an employee cannot take their paid annual leave due to illness.”

“We are striking the right balance between protecting the rights of vulnerable workers who are ill and trying to minimise the cost to business and the Exchequer, as well as implementing the requirements of the EU Directive on Working Time.”

“I believe that the changes are fair and supportive to workers while also giving clarity to employers about their obligations to their employees,” Minister Nash concluded.This brings the Organisation of Working Time Act into line with rulings of the Court of Justice of the EU.The Government is to pursue recovery of outstanding PRSI payments from Employers who claim to be using Contractors rather than Employees

The Department of Social Protection has confirmed that it will pursue the recovery of outstanding PRSI from Employers found to have engaged in so-called "bogus sub-contracting".‘Bogus sub-contracting’ occurs when someone who is an Employee of an Organisation is forced by the Employer to register as self-employed. This is more cost effective to the Employer as it results in them not having to pay as much pension or PRSI contribution for the said Employee. But it also results in the Employee receiving a reduction in social protection and entitlements.

A case that illustrates such practice can be seen from a recent JJ Rhatigan case. Last year, workers for JJ Rhatigan represented by Unite engaged in a five month strike over alleged underpayment of PRSI contribution and wages by the Company. JJ Rhatigan insisted that the workers were employed as self-employed contractors rather than Employees. However, the Department of Social Protection went on to rule that the workers were in fact direct Employees of JJ Rhatigan. Unite Regional Officer for Construction Tom Fitzgerald claimed that the Department of Social Protection ruling would mean JJ Rhatigan being liable for Employers' PRSI for the period in question.

Unite also argued that this meant that some workers were earning less than €5 per hour on a state-funded school building project in west Dublin and were also deprived of social welfare protection.JJ Rhatigan has announced that they will be appealing the ruling.

Workers classed as ‘Employees’ and ‘Self-Employed’ are entitled to different benefits in relation to their PRSI contribution. For example direct Employees are entitled to multiple supports including Jobseekers Benefit, Illness/Invalidity Benefit, and the Transition State Pension. Whereas the self-employed to not enjoy many of these benefits.

Employers need to be aware of the difference between a direct Employee of the Company and self-employed contractors.

A self-employed person does not enjoy many of the rights bestowed upon Employees, e.g. protection from unfair dismissal, paid annual leave. However, a risk often exists that a self-employed contractor may be deemed an Employee due to the relationship they hold with a Company. Care should always be taken to ensure that the lines do not become blurred and that an individual’s status is clearly defined.

There is a Code of Practice in place in order to assist in determining Employment status. It outlines the criteria to assist in determination of whether an individual should be classed as an Employee or a Contractor.